Don't ban e-cigarettes on airplanes

By Marc Scribner

Updated 1925 GMT (0325 HKT) February 19, 2015

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Photos:Cigarette ads from the 20th century

On January 11, 1964, U.S. Surgeon General Luther Terry issued a landmark report on the negative health risks caused by smoking tobacco. But you wouldn't know those risks by looking at some of these prominent advertisements of the 20th century. Here, actor and future U.S. President Ronald Reagan is seen in a 1950s ad for Chesterfield cigarettes.

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Photos:Cigarette ads from the 20th century

A billboard advertises Marlboro cigarettes. The rugged "Marlboro Man" was a staple of the brand's marketing.

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Photos:Cigarette ads from the 20th century

This French advertisement for Benson & Hedges cigarettes was published in 1970.

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Photos:Cigarette ads from the 20th century

A model is seen lying down in an advertisement for Opera Puffs Cigarettes.

Kensitas cigarettes were marketed as a appetite suppressant in 1929. It suggested having a cigarette between meals instead of snacks.

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Photos:Cigarette ads from the 20th century

This Joe Camel billboard, advertising Camel cigarettes, was seen on West 34th Street in New York City. Philip Morris eventually dropped the cartoonish figure amid protests that it appealed to children.

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Photos:Cigarette ads from the 20th century

An ad for Tipalet cigarettes claims its smoke can make men more attractive to women.

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Photos:Cigarette ads from the 20th century

A giant bra was added to this Camel ad in San Francisco by Billboard Liberation Front members who objected to the use of male bodies in ads. At the bottom of the billboard is the surgeon general's warning, which were added to cigarette ads soon after Terry's report in 1964.

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Photos:Cigarette ads from the 20th century

This postcard, printed in Paris around 1950, promotes Wings cigarettes.

An advertisement for Bachelor cigarettes invites the audience to sample their "individual charm and delightful character."

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Photos:Cigarette ads from the 20th century

An advertisement for Our Little Beauties cigarettes, near the turn of the 20th century.

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Photos:Cigarette ads from the 20th century

A 1940s holiday ad for Philip Morris cigarettes.

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Story highlights

Department of Transportation has a proposal to ban e-cigarettes in planes

Marc Scribner: This has more to do with pushing a nanny-state agenda than promoting public health benefits

Marc Scribner is a fellow at the Competitive Enterprise Institute, a free-market think tank in Washington, D.C. He specializes in transportation and telecommunications policy issues. CEI has received funding from the tobacco industry and e-cigarette industry in the past. The opinions expressed in this commentary are solely those of the author.

(CNN)These are good times for anti-smoking campaigners. But you wouldn't know it from listening to their rhetoric. At the urging of anti-tobacco activists, the Department of Transportation is proposing to ban electronic cigarette use aboard aircraft.

This impending regulation not only defies medical evidence but makes a mockery of the law in the process.

The use of e-cigarettes among U.S. adults more than doubled between 2010 and 2013, according to the Centers for Disease Control and Prevention. The tobacco industry predicts e-cigarette sales will surpass traditional cigarettes in the coming decades. This signals great progress from a harm-reduction standpoint, since the best available scientific evidence suggests that while e-cigarettes may bring health risks, they are far smaller than those associated with tobacco smoking.

The risks associated with e-cigarettes are borne exclusively by the users, not the people around them. Unlike tobacco cigarettes, vaporizers do not produce harmful "sidestream" emissions -- the smoke released directly into the air from the end of lit cigarettes, which produces 85% of secondhand smoke and virtually all of its associated risks.

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As for the "mainstream" smoke inhaled by smokers, many of its harmful compounds are partially retained within the smoker's body, which acts as a filter before it is exhaled into the surrounding air.

There is simply no evidence that secondhand aerosols exhaled by e-cigarette users endanger non-users. As Dr. Joel Nitzkin, a former co-chair of the Tobacco Control Task Force of the American Association of Public Health Physicians, said, "[T]here is no public health justification for banning e-cigarette use in no-smoking areas."

Anti-tobacco activists who disingenuously equate vapor and tobacco smoke may perversely convince smokers to reject far safer e-cigarette alternatives. Consumers should not be misled to believe e-cigarettes, which do not produce tobacco smoke and its many concentrated toxins, pose the same risks as smoked tobacco.

To be sure, airlines should be free to ban e-cigarettes aboard their aircraft if they so choose. But just like the use of cell phones on planes (or a passenger's odoriferous perfume, for that matter), the risks posed by e-cigarettes do not justify federal regulation.

In 2011, the Department of Transportation initiated a regulatory proceeding to reinterpret "smoke" and "smoking," in order to extend the existing federal ban on in-flight smoking to e-cigarettes. Now years delayed, the department quietly indicated in mid-January that it plans to finally issue a rule by the end of April to prohibit e-cigarette use aboard aircraft. Such an action runs counter to congressional intent and constitutes an illegal expansion of regulatory power.

The DOT states that Congress' intent in prohibiting smoking in the skies was to "improve air quality within the aircraft, reduce the risk of adverse health effects on passengers and crewmembers, and enhance aviation safety and passenger comfort." The law was intended to address secondhand smoke, and the department concedes "a vapor, rather than smoke, is produced." So how does the Department of Transportation justify its proposal? By noting, that e-cigarettes "require an inhalation and exhalation similar to smoking cigarettes."

So, by DOT's logic, when Congress referred to "smoke" and "smoking," it meant anything that might vaguely resemble smoke and smoking, rather than smoke itself and its resulting harms, even though Congress enacted a clear law in which the terms "smoke" and "smoking" are not ambiguous.

The Department of Transportation has no authority to regulate vaping, an area over which it has no jurisdiction. It may claim that it is simply interpreting "smoking" to cover the use of e-cigarettes, but as the Supreme Court has made it clear, an "agency may not bootstrap itself into an area in which it has no jurisdiction" by stretching the language of a statute.

Regardless of one's views on whether airlines should permit e-cigarette use on their flights or not, the Department of Transportation's attempt to rewrite a law passed by Congress is an unlawful abuse of power. The looming in-flight e-cigarette ban has far more to do with pushing a nanny-state agenda than promoting illusory public health benefits.